COVID-19 Related Webinar: Your Legal Case is Suspended, Can You Make an Interim Agreement?

The court has been very clear that all existing court orders (for example, parenting arrangements, support, etc.) remain in effect. Parents should do their best to maintain the status quo, particularly with children, in order to give them stability. These arrangements should be adhered to “unless there are compelling reasons and evidence that satisfies a Court that there should be a change” (Skuce v Skuce, 2020 ONSC 1881). It is assumed that the existing orders were premised on the child’s best interest, and the courts are saying that this should continue in the time of a pandemic, such as COVID-19.

In fact, the courts have made it clear that “unilateral” changes – changes made without consulting the other party – are frowned upon. This means that doing so could negatively impact you down the road if your case is ever back in front of a judge.

Reflect…

We first suggest you reflect on what your priorities are right now. Perhaps make yourself a list. You might also consider talking to a “coach” – someone who knows you and your situation and can help you reflect objectively (you could use the criteria we suggest for choosing a McKenzie Friend or Courtroom Companion, here at pages 8-10).

Next, think of what the other party wants. This might be hard for you to do, but try to get into their head – the more you know about what’s important to them, the more likely you’ll have success in your negotiation.

Once you have made your priority list and talked to your “coach”…

Reach out…

Step 1: Reach out to the other side and say you want to try to make an agreement for the new conditions you are all facing during the pandemic. Just put that out there without details. Explain why you think an agreement would help everyone. If the other side is represented by a lawyer, reach out to them with the same message. Explain it would be temporary and it could help reduce the current uncertainty we are facing at the moment.

Draft…

Step 2: Your next step is to draft a proposal (you can use/modify the NSRLP template clauses) and send it. Avoid the temptation to say something positional (such as “here it is, take it or leave it!”). Say instead that this draft reflects what you are concerned about and that you want to hear their reaction and comments. Think also about who else needs to be on board with this agreement (outside of you and your co-parent, is there anyone else involved in your child’s care who might not buy into this new agreement?). This is important to consider and evaluate. Lastly, set a timeline for you ex to get back to you.

Listen…

Step 3: Hear what the other party has to say in response to your proposal and evaluate how it meets your concerns and priorities. You’ll need to ask yourself questions about whether you’re willing to compromise, and whether the other party might be able to compromise. Compare your ex’s response to both your best and worst-case scenario. Compare the response to your BATNA (“Best Alternative to a Negotiated Agreement”) – if you’re not willing to compromise, will you be going to court or mediation? Consider also that it’s very hard to get in front of a judge right now for any court-ordered solution. Talk to your “coach” to weigh the pros and cons.

Formalize…

Once you’ve agreed on an arrangement, it is important to write up the agreement and have both parties sign it (and any third parties who are involved, see Question 4 below).

Putting this in writing is important because it helps minimize misunderstandings and shows both parties’ intention. The NSRLP template clauses may be helpful here.

Other things to include:

• Set a time (perhaps two weeks) when you and the other party will review the agreement and evaluate how it is working.
• Include a process for dealing with disputes (e.g. if you believe the other parent is breaching any of the clauses). This is usually called a “dispute resolution clause”. For example, you could agree that if there is a dispute you will first talk by phone before taking any action; or if there is a dispute, you will ask a named person whom you both trust to help you talk it through and see if it can be resolved without calling the whole agreement off.
• You make should also say that this is “an agreement without prejudice” and made specifically as a result of Covid-19 concerns and protocols. This means that you both recognize that your new written agreement is not a court order but something that you’ve agreed on between yourselves due to the current circumstances. Because it is temporary, you may want to title your written agreement “Interim Without Prejudice Agreement”

And be sure to keep a copy of the agreement as you may want to show this to a court in the future, or may need to rely on it yourself.

Throughout all these steps, remember to do your best to keep your emotions out of it. Try and be professional and appropriate when communicating with your ex – remember that a judge might read anything you write to each other one day. Your actions and words matter, and keeping the animosity down will help facilitate your agreement.

All supervised access centers, which includes access exchanges, are closed. This is presenting a lot of difficulties in the facilitation of exchanges and access in general. You are going to need to get creative.

For example, could you both agree on a safe place that you can do access exchange, such as one or other parent’s home, or the home of a family friend or relative?

Can you agree on an individual who can supervise access where this is required? Again, perhaps a family friend or family member?

That third-party will need to acknowledge that they are also following COVID-19 public health protocols. This is something that can be stipulated in your new access agreement (which we recommend you write out, and both parents and the third party should sign).

If you fear that your co-parent is not complying with the COVID-19 public health protocols, we suggest that you first try to have a conversation with them. It is really important, if possible, to continue to communicate with your child’s other parent during the pandemic, especially concerning your child’s safety and well-being. If you have made an agreement (see Questions 2 and 3 above), you may have included some information on what would happen – a “dispute resolution” clause – if one party is not complying with the protocols which you can use if you are worried about this. If you try to communicate but receive no response or no helpful response, and you believe your case is now “urgent, you can try to apply for a judge to hear an “urgent” motion as discussed in last week’s webinar.

The courts have stressed that sharing information in relation to exposure to the virus between parents is extremely important. This type of information ranges from the child’s possible exposure to the parents’ risk through the work they do (or otherwise leaving the house) as well as to possible house guests (such as other shared parenting agreements in a blended family situation). It is highly recommended that the two parties undertake to share such information. This can alleviate a lot of stress during this pandemic.

You could also include a clause promising you will both share such information in an interim agreement (see Questions 2 and 3 above).

Unfortunately, there is no practical way of ensuring this. If you are contemplating making an interim arrangement, it is important to include some clauses that require protocols to be followed as well as continue to keep communication lines open (see Questions 2 and 3 above).

No. We suggest that any agreement reached by the parties in light of the current pandemic should specify that the agreement is on a without prejudice basis and specifically as a result of COVID-19 concerns and protocols – this means that it’s not a court order and rather something that you’ve agreed on between yourselves due to the current circumstances (see Questions 2 and 3 above).

You should try to continue making support payments if you possibly can. If you cannot continue to pay the full amount ordered at this time (perhaps because of a change in your income), we suggest you make an agreement regarding support payments through a temporary, interim agreement (see Questions 2 and 3 above).

We suggest you begin the same way as you would in revisiting any other arrangements affected by the current emergency. Reach out to the other parent and talk about an adjustment in light of these circumstances.

You can write up a temporary agreement about support in the same way as you would write up changes in parenting arrangements (see the suggestions in Questions 2 and 3 above). As well as whatever you have agreed as a revised amount of support for the time being, this should include:

• A clause (or a header) describing this an interim, without prejudice agreement
• A clause that sets a regular review time (each week, two weeks or month, as you wish)

You would also need to call the Family Maintenance Enforcement Program office in your province or territory (for example, the Family Responsibility Office in Ontario) and let them know what you’re agreeing to for the time being. Be clear that this change is temporary and due to the consequences of COVID-19. Such an agreement would likely be accepted by this office.